Analysis: ISPs play wait and see game after iiTrial

Do Australia's large ISPs have a repeat infringer policy?

In the heady days after iiNet won its landmark court battle against a coalition of film and TV studios earlier this month, it would have been easy to assume Australian internet users could say goodbye forever to the creeping paranoia so many have felt after receiving a forwarded copyright infringement notice by email.

After all, so the argument went, other ISPs should now have the legal precedent to follow iiNet and refrain from forwarding the onerous messages to their customers.

"It's the constitution. It's Mabo. It's just ... the vibe," wrote one poster on broadband forum Whirlpool, in a thread which could perhaps be best described as a mass of broadband users dancing on what they believed was the Australian Federation Against Copyright Theft's grave. And even Telstra, which had supported iiNet throughout the trial, welcomed what it said was "legal clarity" about ISPs regarding the case.

Yet three weeks on from the verdict, it appears many ISPs are not too sure that that legal clarity actually exists. Australia's largest ISPs have taken a variety of approaches after the case that indicates they are unsure of how to take the result, or even whether such a result can be taken as graven in stone, given the possibility of an AFACT appeal.

Key to the issue is whether each individual ISP will change its policy on what are called "repeat infringers" -- customers who attract the attention of copyright owners because of ongoing dodgy downloads.

Take Telstra, which still has the lion's share of Australia's broadband market through its BigPond brand. Three weeks after hailing the "legal clarity" that it said the iiNet case brought to the industry, the big T has refused to comment on whether the verdict has changed its repeat infringer policy, which it does not make available publicly, although it's also believed Telstra is holding its cards to its chest because of the possibility of an appeal.

We haven't seen any evidence that Telstra forwards on copyright infringement notices to its customers. But it's hard to know exactly what the telco's policy is towards copyright infringement, because its customer terms and conditions document does not mention the issue, apart from to state that customers may not use broadband services for illegal purposes.

The only other statement the telco makes publicly about copyright infringement is a big fat warning on its site stating customers may not use BigPond to download, copy, share or distribute copyrighted works. But it's hard to know what the telco does about those of its customers who do.

Another telco sitting on the fence following the iiNet trial is Internode.

"An internal review of the case outcome is still in progress, and we await any further potential developments, after which we will decide if there is any need to alter any of our existing policies in this area," says Internode chief executive Patrick Tapper.

Like Telstra, Internode does not forward on copyright infringement notices to its customers. But it's hard to know what it does about repeat infringers, because also like Telstra, Internode maintains a repeat infringer policy, but does not publish it.

Internode's standard form of agreement does go into a lot more detail than Telstra's, however like Telstra's web page warning it mainly warns customers not to breach copyright, but not what action it will take if it busts you doing do.

There are, however, ISPs that are more clear in what action they will take if you infringe copyright using their network.

Appendix H of Optus' internet acceptable use policy -- last updated on 15 January this year -- lays down some pretty steep rules for copyright infringers, although we haven't seen evidence that the ISP forwards on copyright infringement notices to its users. The document states that Commonwealth legislation allows copyright owners (or their agents) to direct Optus to remove copyrighted material from its servers or to prevent users from accessing copyrighted materials.

The ISP clearly states that it may take any steps necessary to ensure compliance with infringement notices, including removing content from its servers, closing or suspending internet accounts, filtering the internet content available to a customer or restricting access to a particular website.

"We may take these steps at any time and without notice to you," the policy states.

An Optus spokesperson last week said the telco considered that its approach to copyright issues was "consistent with existing law and the recent judgement handed down in the iiNet case."

However, like others, the telco also believes the film and television studios and their representative body, the Australian Federation Against Copyright Theft may still appeal the iiNet verdict.

Several weeks ago at the telco's half-yearly financial results briefing, Optus director of Government and Corporate Affairs Maha Krisnapillai said the telco suspected there was a "fair way" still to play in the case in terms of appeals.

At the time Krisnapillai said Optus tried to discourage inappropriate behaviour on the part of its users when appropriate and referred to its fair use policy. But, he added, the telco also wanted "not to tell customers what they can and can't do on the network".

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